The ICCPR is monitored by the United Nations Human Rights Committee (a separate body to the United Nations Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally holds three sessions per year.

The ICCPR has its roots in the same process that led to the Universal Declaration of Human Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference which led to the founding of the United Nations, and the Economic and Social Council was given the task of drafting it.[2] Early on in the process, the document was split into a declaration setting forth general principles of human rights, and a convention or covenant containing binding commitments. The former evolved into the UDHR and was adopted on 10 December 1948.[2]

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.[3]

Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural rights.[4] These eventually caused the convention to be split into two separate covenants, "one to contain civil and political rights and the other to contain economic, social and cultural rights."[5] The two covenants were to contain as many similar provisions as possible, and be opened for signature simultaneously.[5] Each would also contain an article on the right of all peoples to self-determination.[6]

The first document became the International Covenant on Civil and Political Rights and the second the International Covenant on Economic, Social and Cultural Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966.[7] As a result of diplomatic negotiations the International Covenant on Economic, Social and Cultural Rights was adopted shortly before the International Covenant on Civil and Political Rights.

The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.[8]

Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the right to "freely determine their political status",[9] pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence,[10] and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.[11]

Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights.[12] It also requires the rights be recognised "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,"[13] and to ensure that they are enjoyed equally by women.[14] The rights can only be limited "in time of public emergency which threatens the life of the nation,"[15] and even then no derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood, and freedom of thought, conscience and religion.[16]

Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to

physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8);

individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 – 24);

prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Article 20);

political participation, including the right to the right to vote (Article 25);

Many of these rights include specific actions which must be undertaken to realise them.

Part 4 (Articles 28 – 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise the competence of the Committee to resolve disputes between parties on the implementation of the Covenant (Articles 41 and 42).

Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources".[17]

Part 6 (Articles 48 – 53) governs ratification, entry into force, and amendment of the Covenant.

Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law.[18] It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely.[19] It therefore requires parties to take positive measures to reduce infant mortality and increase life expectancy, as well as forbidding arbitrary killings by security forces.[19]

While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes"[20] and forbids it to be used on children and pregnant women[21] or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide.[22] The UN Human Rights Committee interprets the Article as "strongly suggest[ing] that abolition is desirable",[19] and regards any progress towards abolition of the death penalty as advancing this right.[19] The Second Optional Protocol commits its signatories to the abolition of the death penalty within their borders.

Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law,[27] and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.[28] These provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or for educational or immigration purposes.[29]

Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge.[30] It also restricts the use of pre-trial detention,[31] requiring it to be imposed only in exceptional circumstances and for as short a period of time as possible.[29]

Article 10 requires anyone deprived of liberty to be treated with dignity and humanity.[32] This applies not just to prisoners, but also to those detained for immigration purposes or psychiatric care.[33] The right complements the Article 7 prohibition on torture and cruel, inhuman or degrading treatment.[33] The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated from convicted prisoners, and children to be separated from adults.[34] It requires prisons to be focused on reform and rehabilitation rather than punishment.[35]

Article 11 prohibits the use of imprisonment as a punishment for breach of contract.[36]

Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public.[37] Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce cases or to protect the interests of children.[37] These obligations apply to both criminal and civil hearings, and to all courts and tribunals.[38]

Article 12 guarantees freedom of movement, including the right of persons to choose their residence and to leave a country.[47] These rights apply to legal aliens as well as citizens of a state,[48] and can be restricted only where necessary to protect national security, public order or health, and the rights and freedoms of others.[49] The article also recognises a right of people to enter their own country.[50] The Human Rights Committee interprets this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality.[48] They also regard it as near-absolute; "there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable".[48]

Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.[51]

Article 17 mandates the right of privacy.[52] This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour,[53] however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision.[54] Article 17 also protects people against unlawful attacks to their honor and reputation. Article 17 (2) grants the protection of the Law against such attacks[52]

Article 3 provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independently and can only be relied upon in relation to another right protected by the ICCPR.

In contrast, Article 26 contains a revolutionary norm by providing an autonomous equality principle which is not dependent upon another right under the convention being infringed. This has the effect of widening the scope of the non-discrimination principle beyond the scope of ICCPR.

There are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the Covenant.[64] This has led to the creation of a complex jurisprudence on the interpretation and implementation of the Covenant. As of July 2013[update], the First Optional Protocol has 114 parties.[65]

The Second Optional Protocol abolishes the death penalty; however, countries were permitted to make a reservation allowing for use of death penalty for the most serious crimes of a military nature, committed during wartime.[66] As of July 2013[update], the Second Optional Protocol had 77 parties.[67]

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A number of parties have made reservations and interpretative declarations to their application of the Covenant.

Argentina will apply the fair trial rights guaranteed in its constitution to the prosecution of those accused of violating the general law of nations.[1]

Australia reserves the right to progressively implement the prison standards of Article 10, to compensate for miscarriages of justice by administrative means rather than through the courts, and interprets the prohibition on racial incitement as being subject to the freedoms of expression, association and assembly. It also declares that its implementation will be effected at each level of its federal system.[1]

Austria reserves the right to continue to exile members of the House of Habsburg, and limits the rights of the accused and the right to a fair trial to those already existing in its legal system.[1]

Bahamas, due to problems with implementation, reserves the right not to compensate for miscarriages of justice.[1]

Bangladesh reserves the right to try people in absentia where they are fugitives from justice and declares that resource constraints mean that it cannot necessarily segregate prisons or provide counsel for accused persons.[1]

Barbados reserves the right not to provide free counsel for accused persons due to resource constraints.[1]

Belgium interprets the freedoms of speech, assembly and association in a manner consistent with the European Convention on Human Rights. It does not consider itself obliged to ban war propaganda as required by Article 20, and interprets that article in light of the freedom of expression in the UDHR.[1]

Belize reserves the right not to compensate for miscarriages of justice, due to problems with implementation, and does not plan to provide free legal counsel for the same reasons as above. It also refuses to ensure the right to free travel at any time, due to a law requiring those travelling abroad to provide tax clearance certificates.[1]

Denmark reserves the right to exclude the press and the public from trials as per its own laws. Reservation is further made to Article 20, paragraph 1. This reservation is in accordance with the vote cast by Denmark in the XVI General Assembly of the United Nations in 1961 when the Danish Delegation, referring to the preceding article concerning freedom of expression, voted against the prohibition against propaganda for war.[1]

Gambia, as per its constitution, will provide free legal assistance for accused persons charged with capital offences only.[1]

The United States has made reservations that none of the articles should restrict the right of free speech and association; that the US government may impose capital punishment on any person other than a pregnant woman, including persons below the age of 18; that "cruel, inhuman and degrading treatment or punishment" refers to those treatments or punishments prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the US Constitution; that Paragraph 1, Article 15 will not apply; and that, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14, the US government may treat juveniles as adults, and accept volunteers to the military prior to the age of 18. The United States also submitted five "understandings", and four "declarations".[68]

The International Covenant on Civil and Political Rights has 167 states parties, 67 by signature and ratification, and the remainder by accession or succession. Another five states have signed but have yet to ratify the treaty.[1]

The Covenant is not directly enforceable in Australia, but its provisions support a number of domestic laws, which confer enforceable rights on individuals. For example, Article 17 of the Convention has been implemented by the Australian Privacy Act 1988. Likewise, the Covenant’s equality and anti-discrimination provisions support the federal Disability Discrimination Act 1992. Finally, the Covenant is one of the major sources of 'human rights' listed in the Human Rights (Parliamentary Scrutiny) Act 2011.[69] This law requires most new legislation and administrative instruments (such as delegated/subordinate legislation) to be tabled in parliament with a statement outlining the proposed law's compatibility with the listed human rights[70] A Joint Committee on Human Rights scrutinises all new legislation and statements of compatibility.[71] The findings of the Joint Committee are not legally binding.

Legislation also establishes the Australian Human Rights Commission [72] which allows the Australian Human Rights Commission (AHRC) to examine enacted legislation[73] (to suggest remedial enactments[74]), its administration[75] (to suggest avoidance of practices[76]) and general compliance[77] with the covenant which is schedule to the AHRC legislation.[78]

In Victoria and the Australian Capital Territory, the Convention can be used by a plaintiff or defendant who invokes those jurisdiction's human rights charters.[79] While the Convention cannot be used to overturn a Victorian or ACT law, a Court can issue a 'declaration of incompatibility' that requires the relevant Attorney-General to respond in Parliament within a set time period.[81] Courts in Victoria and the ACT are also directed by the legislation to interpret the law in a way to give effect to a human right,[80] and new legislation and subordinate legislation must be accompanied by a statement of compatibility.[82] Efforts to implement a similar Charter at the national level have been frustrated and Australia's Constitution may prevent conferring the 'declaration' power on federal judges.[83]

Ireland's use of Special Criminal Courts where juries are replaced by judges and other special procedures apply has been found to not violate the treaty: "In the Committee's view, trial before courts other than the ordinary courts is not necessarily, per se, a violation of the entitlement to a fair hearing and the facts of the present case do not show that there has been such a violation.".[84]

New Zealand took measures to give effect to many of the rights contained within it by passing the New Zealand Bill of Rights Act in 1990, and formally incorporated the status of protected person into law through the passing of the Immigration Act 2009.[85]

The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[68] Some have noted that with so many reservations, its implementation has little domestic effect.[86] Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing",[87] and in a Senate Executive Report stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts."[88] However, "expressed declarations" do not affect treaties [Igartua-De Le Rosa v. US, 417 F.3d 145, 190-191 (1st Cir. 2005)] Fleming v US (15-8425) establishes the ICCPR treaty IS SELF-Executing by legal definition of a self-executing treaty, US reports to UN, DOJ and US Ambassador Hamamoto.

Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action within the U.S. judicial system is created by ratification.[89] However, the U.S. Federal Government has held that the ICCPR treaty was only ratified "after" it was determined that all the necessary legislation was in place to provide for domestic effect of law, thereby making the ICCPR treaty self-executing by definition. See all four reports by U.S. to U.N. regarding the ICCPR treaty. It is also important to emphasize that the "self-executing" statement was a declaration and the Courts have held that declarations have no effect upon treaty law and the rights of citizens.[citation needed]

As a reservation that is "incompatible with the object and purpose" of a treaty is void as a matter of the Vienna Convention on the Law of Treaties and international law,[90] there is some issue as to whether the non-self-execution declaration is even legal under domestic law.[91]

Prominent critics in the human rights community, such as Prof. Louis Henkin[92] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust[93] ("Rarely has a treaty been so abused") have denounced the United States' ratification subject to the non-self-execution declaration as a blatant fraud upon the international community, especially in light of its subsequent failure to conform domestic law to the minimum human rights standards as established in the Covenant and in the Universal Declaration of Human Rights over the last thirty years.

It has been argued that Article 20(2) of the ICCPR, as well as Article 4 of the ICERD, may be unconstitutional according to Supreme Court precedent, which is the reason behind the Senate reservations.[94]

Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.

Indeed, the United States has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant.[96] Its citizens are not permitted to sue to enforce their basic human rights under the Covenant.[96] It has not ratified the Optional Protocol to the Convention against Torture (OPCAT). As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials' insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its citizens of the "effective remedy" under law the Covenant is intended to guarantee.

In 2006, the Human Rights Committee expressed concern over what it interprets as material non-compliance, exhorting the United States to take immediate corrective action:[97]

The Committee notes with concern the restrictive interpretation made by the State party of its obligations under the Covenant, as a result in particular of (a) its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice; (b) its failure to take fully into consideration its obligation under the Covenant not only to respect, but also to ensure the rights prescribed by the Covenant; and (c) its restrictive approach to some substantive provisions of the Covenant, which is not in conformity with the interpretation made by the Committee before and after the State party’s ratification of the Covenant.

The State party should review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose. The State party should in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war; (b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and (c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.

As of February 2013[update], the United States is among States scheduled for examination in the 107th (11–28 March 2013) and 109th (14 October – 1 November 2013) sessions of the Committee.[98]

^ abcdefYugoslavia signed the Covenant on 8 August 1967 and ratified it on 2 June 1971; it entered into force for Yugoslavia on 23 March 1976. Following the breakup of Yugoslavia, the following states located in the former Yugoslavia made declarations regarding that status of the Covenant with regard to themselves:

Bosnia and Herzegovina – On 1 September 1993, it declared that the Covenant was in force for it since 6 March 1992.

Federal Republic of Yugoslavia – On 12 March 2001, it declared that the Covenant was in force for it since 27 April 1992. On 4 February 2003, the Federal Republic of Yugoslavia changed its name to Serbia and Montenegro, and on 3 June 2006 Serbia succeeded Serbia and Montenegro. Therefore, for Serbia, the Covenant has been in force since 27 April 1992.

Republic of Macedonia – On 18 January 1994, it declared that the Covenant was in force for it since 17 September 1991.

Montenegro – On 23 October 2006, it declared that the Covenant was in force for it since 3 June 2006.

^Although Cambodia signed the Covenant when it was known as Democratic Kampuchea, it filed an instrument of accession, not ratification, on 26 May 1992.

^ abCzechoslovakia signed the Covenant on 7 October 1968 and ratified it on 23 December 1975; it entered into force for Czechoslovakia on 23 March 1976. Following the dissolution of Czechoslovakia, the Czech Republic declared on 22 February 1993 that the Covenant was in force for it since 1 January 1993 and Slovakia declared on 28 May 1993 that the Covenant was also in force for it since 1 January 1993.

^East Germany signed the Covenant on 23 March 1973 and ratified it on 8 November 1973; it entered into force for East Germany on 23 March 1976. Following the reunification of Germany on 3 October 1990, East Germany ceased to exist.

^On 25 August 1997, North Korea notified the Secretary-General of the United Nations that it was withdrawing from the Covenant. However, the Secretary-General still considers North Korea a state party to the Covenant because the Covenant does not allow for withdrawal and therefore withdrawal would only be possible if all other states parties allowed it, which has not occurred.

^ abPortugal extended the territorial application of the Covenant to Macau on 27 April 1993. On 3 December 1999, China notified the Secretary-General of the United Nations that the Covenant would still be in force for Macau following the transfer of sovereignty on 20 December 1999.

^ abBoth China and the United Kingdom notified the Secretary-General that the Covenant would continue to remain in force for Hong Kong upon transfer of sovereignty on 1 July 1997.

^Taiwan (the Republic of China) lost its United Nations membership on 25 October 1971; the Republic of China signed the Covenant on 5 October 1967 but did not ratify it.

Article 29.3: The supremacy of the purposes and principles of the United Nations

Article 30:

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.